RAMA VARMA THAMPURAN Vs. KUNJUPENNAMMA

JUDGEMENT

(1.) The question raised in this second appeal arising from proceedings in execution of a decree for redemption of an otti is whether the execution is barred by time. The two lower courts have answered the question concurrently against the decree holder and he has therefore brought this second appeal.

(2.) The final decree for redemption which was passed by the appellate court entitles the decree holder to recover possession of the mortgaged property on payment of the mortgage money and value of improvements. With reference to certain buildings shown as item (2) in the Schedule annexed to the decree, the decree provides that the defendants should remove the same within two months from the date of the decree and that in the event of their not carrying out the direction the decree holder can recover possession of them on payment of the value fixed for them by the decree. Defendant 2 was to receive from the decree holder the commission batta he paid into the Trial Court to take out a commission to value the improvements and the decree holder was also to pay defendant 2 the latters costs before the appellate court. The date of the appellate decree is 30.3.1110. E.P. No. 137 of 1121, where from this second appeal arises was filed on 24.2.1121 and it is the one and only application the decree holder filed in the case to execute the decree. Prima facie the execution petition was filed out of time, but for the decree holder reliance is placed on two acknowledgments in writing made by defendant 2.

(3.) The first one bears the date 12.10.1114 and it is contained in an application made by the said defendant before the court of first instance (the District Munsiffs Court, Mavelikkara) to transfer the decree to the Adoor Munsiffs Court for execution against the decree holder for realising the costs due to him as per the terms of the appellate decree. That application sets out in clear and unambiguous language the terms of the final decree for redemption and contains a clear admission of the decree holders right to redeem the mortgaged property as per the terms of the final decree passed in the case. As the decree is a registered one the application defendant 2 filed was within time. After the decree was transferred to the Adoor Munsiffs Court defendant 2 filed there an execution application on 31.11.1116 against the decree holder and like his application of 12.10.1114 before the parent court this petition also sets out the terms of the decree for redemption. There is therefore another acknowledgment by defendant 2 of the decree holders right to redeem under the decree. It would appear that pursuant to this application defendant 2 succeeded in realising the costs due to him from the decree holder. A certificate to that effect is seen filed by him on 7.2.1117 before the court executing the decree. That however is only by the way. What is relevant for our present purpose is that the execution application giving rise to this second appeal was filed within six years of the acknowledgment defendant 2 made in his execution application dated 31.11.1116. The question for decision is whether these two acknowledgments have kept the decree alive as to entitle the decree holder to redeem the mortgaged property pursuant to the application he filed on 24.2.1121.